Statement by Dr Longin Pastusiak, President of Polish Senate
at the 6th meeting of the Association of European Senates

Warsaw - May 24-26, 2004

The accession of ten new states - including Poland - to the
European Union is a breakthrough event. We have taken a huge step on the way to
a truly unified Europe, although the process is not yet completed. This
accelerating and increasingly close-knit integration places before the Union and
each of its members a gamut of challenges connected with almost all aspects of
life. Among them are also those which relate to parliaments. There is a need for
laws, rules and procedures which include national parliaments in decision-making
processes at the EU level.

Today's meeting of the Association of European Senates, held
less than a month after the grand enlargement of the European Union, is an
excellent opportunity for an analysis of the competences of national parliaments
with respect to the Community and, particularly, for a reflection on the role
played therein by upper parliamentary chambers. Parliaments of all countries
acceding the European Union have been actively involved in the process of
adaptation of the internal legal system to Community laws.

There is a clear trend toward widening the role of national
parliaments in the European Union. Indeed, until now, domination by national
governments has been the binding rule. They have played a leading role in
relations with European institutions, whereas national representative bodies had
to contend with a lesser position. It is estimated that a member-state
parliament loses some 60% of its current legislative competences as a result of
their transfer to the European decision-making level. Today, the process of
restricting the position and role of national parliaments is being slowly but
consistently decelerated and reversed. The need to provide national parliaments
with institutional possibilities of influencing the development of joint
European laws has been stressed in numerous declarations, including Declaration
No. 13 on the Role of National Parliaments in the European Union or in the
Protocol on the Role of National Parliaments in the European Union annexed by
virtue of the Amsterdam Treaty to the Treaty on European Union. They all
encourage national parliaments to become more involved in EU activities and urge
them to establish a closer cooperation with national governments, necessary to
work out joint positions. In addition to declarations, institutional forms of
engaging national parliaments in EU decision-making mechanisms, such as COSAC,
are either created or expanded.

The issue whether both parliamentary chambers or only one
should play an active role in the domestic decision-making process relating to
the European Union depends to a large degree on the overall concept of
bicameralism. A model of two equal and symmetrical chambers will require equal
involvement, as is the case, for example, in Italy. In turn, an alternative
model of unequal or asymmetrical bicameralism will probably lead to a situation
where the leading role will be reserved for a single chamber, likely the lower
one, as illustrated by the Austrian experience. The asymmetry of chambers does
not at all exclude their equal involvement in matters concerning the European
Union, as shown by the example of the Fifth French Republic. It may even be said
that, in some cases, it is precisely the involvement in the European
decision-making that compensates for the weaker position of the upper chamber.
While the two chambers may be unequal when it comes to their domestic
legislative or controlling functions, they become equal in the area of European
policy. As a consequence, the upper parliamentary chamber may end up performing
a totally new function.

Moreover, the upper chamber may play a particular role in EU
affairs by representing the interests of specific regions and territorial units.
Indeed, we should take into account opposite tendencies and processes which are
evidently taking place on our continent. On one hand, there is advancing
integration and globalization, while on the other, there is also increased
regionalization. In many countries, there is a clear trend toward accentuating
national differences and dissimilarities. It seems, therefore, that the upper
chamber may turn out to be a very useful tool in representing these regionalisms
and, at the same time, a body making possible their European
institutionalization. The examples of Belgium, Netherlands, Spain and,
particularly, Germany confirm that very convincingly. Suffice it to mention the
German Bundesrat which seems to be at the forefront of promoting participation
of the lands in European integration processes and which is slowly
transforming into a chamber that represents these regions equally on the EU
level and on the German federal level.

The participation of parliamentary chambers, including the
upper chamber, in European decision-making mechanisms necessitates properly
designed domestic legal norms. Giving a constitutional rank to laws governing
the European role of national parliaments is not indispensable but seems very
desirable for several reasons. Firstly, because it has a symbolic significance.
A constitutional authority given to European activities of parliamentary
chambers underlines the significance of these tasks. At the same time, it is a
form of compensation for national legislatures losing certain prerogatives to EU
bodies. Secondly, a constitutional reference to the parliament's European tasks,
because of their importance, makes it possible to separate a new function of
national legislature - the European function. This function consists in
introducing European norms into the domestic legal order, which is undoubtedly
an expression of a law-making activity, but also in cooperating with the
government on European issues, which, in turn, is associated with a certain form
of control. Thirdly, a constitutional reference to the parliament's European
function contributes to the creation of a sense of assurance and stability,
which in itself is very valuable to any legal order. However, even without
appropriate constitutional provisions, there exists a guarantee for a pro-EU
interpretation of the constitution, which among other things requires maximum
involvement of the parliament in the European integration processes. This
interpretation is done at a lower level of legislation, i.e. in legal acts and
parliamentary regulations. The latter ought to assist the parliament in
acquiring the necessary information from and collaborating with the government
on drawing up joint positions addressed to the European Union. Such procedures
consist mainly of the government's obligation to table specific documents to the
parliament, consult or seek the parliament's opinion with respect to some such
documents, and establish specialized internal parliamentary committee-like
bodies. Today, so-called European committees are standard, but there still
remains the question whether each chamber should have a separate European
committee or should there be only one such committee in the parliament. It seems
that the choice of a European committee model should be correlated with the
overall model of the chambers' European involvement. Consequently, if we opt for
a concurrent accomplishment of European tasks by both chambers, without any
clear specialization, then a joint committee seems to be more appropriate - and
the example of Spain confirms that. However, if we adopt a division of tasks or
an unbalanced performance of European tasks by both chambers, then separate
committees seem more appropriate.

If we take a closer look at constitutional foundations of the
Polish Senate's European prerogatives we easily notice how scrawny they really
are. The Polish constitution governs only the issue of transferring the
competences of Polish state bodies to the Union and defines the supremacy of the
EU law in case of collision with domestic legislation.

The Polish constitution lacks provisions detailing the role of
the parliament in matters associated with our membership in the European Union.
Therefore, we need to refer to the above mentioned Protocol on the Role of
National Parliaments in the European Union.

As we know, the protocol obligates the European Commission to
forward its consultation documents (green and white papers and communications)
directly to member-states' national parliaments upon publication and to send EU
legislative proposals to national governments early enough so as to ensure that
they can forward them to parliaments on time. It should be stressed that the
protocol unequivocally points to the government as the body tasked with
forwarding European documents to the parliament upon reception. What is more
important, the member-state government is also liable for the outcome of such
document circulation.

The preamble to the protocol also stresses the necessity for a
greater involvement of national parliaments in the activities of the European
Union, but the form of that involvement is a matter for the particular
constitutional system of each member-state.

With a view to implement the provisions of the protocol and
fill the peculiar gap created as a result of the absence of constitutional
regulations, the parliament passed on March 11th, 2004, the Act on
Cooperation of the Council of Ministers with the Sejm and Senate on Issues
Associated with the Membership of the Republic of Poland in the European
Union.

This act commits the Council of Ministers to cooperate with the
Sejm and Senate on all matters associated with Poland's membership in the
European Union, and obligates it to provide both, I repeat, both chambers of
parliament with reports on the participation of the Polish Republic in EU
activities. These reports must be tabled at least once every six months. The act
also provides the Sejm and Senate, as well as "their bodies having appropriate
jurisdiction defined in parliamentary regulations", i.e. European committees of
both chambers, with the right to request information on issues associated with
Poland's membership in the European Union.

As a result of passing the Act, the Polish Senate adopted on
April 22nd a resolution amending its regulations. This amendment
provides for the establishment of a new Senate committee, named the "European
Union Affairs Committee". An annex to the regulations also defines the tasks of
the Committee, namely dealing with all issues associated with Poland's
membership in the European Union, particularly as concerns taking positions and
expressing opinions on EU draft legislation, drafts of international agreements
(to which the European Union, European Communities or their member-states are to
be a party), planned activities of the Council of the European Union, and annual
legislative plans of the European Commission, as well as examining information
and other documents tabled by the Council of Ministers.

We are now coming to an issue which is likely to be the most
important. It deals, of course, with the division of European competences
between the two chambers of parliament. In other words, should both chambers be
involved in performing European tasks and, if so, to what extent, or maybe these
tasks should be assigned to only one chamber and, if so, which one.

The debate on the shape of the entitlements of both chambers of
the Polish parliament with respect to European issues has been very tempestuous.
While it was in progress, traditional parliamentary competences were thoroughly
examined and the outcome of that examination served as a background for the
scrutiny of the issue of participation in the creation of Community laws.
Indeed, the division of European competences between the Sejm and Senate
depended on a definition of that "participation". During the development of
pertinent legislation and despite initial misgivings, it was decided that the
work of the representatives of the legislative branch on government proposals
relating to the European legislative process did not fit in the traditional
functions of the parliament. They remained at the junction of legislative and
controlling functions, and in practical terms would constitute a compensation
for the parliament losing its legislative competences to EU bodies.

However, one cannot compensate a real loss of legislative
competences only with new controlling competences (which by virtue of the Polish
constitution are vested mainly in the Sejm). Consequently, it was decided in the
Act of March 11, 2004, that both chambers need to be included in the creation of
the principles of parliamentary participation in the development of the Polish
position relative to new European laws.

Despite Senate efforts, the Act did not provide for a full
"symmetry" between the entitlements of both chambers. That inequality is
expressed not only in the Sejm European Affairs Committee having the exclusive
right to pass judgment on candidates to certain EU positions but, before all
else, in different legislative roles reserved in the constitution for both
chambers. The Act on Cooperation of the Council of Ministers with the Sejm
and Senate on Issues Associated with the Membership of the Republic of Poland in
the European Union weakens the Senate in a particularly strong way. Pursuant
to its provisions, only the Sejm European Affairs Committee is entitled to issue
an opinion prior to the final examination of a draft law by the Council of the
European Union and - most importantly - in practical terms it is the only
opinion that the Council of Ministers must take into consideration. Indeed, it
was decided that whenever the Council of Ministers fails to consider an opinion
of the Sejm European Affairs Committee in its final position, it will have to
immediately clarify thereto the reasons behind the resulting discrepancy. On the
other hand, the Senate European Affairs Committee does not participate in that
procedure; its role, therefore, is limited to providing an opinion to the
Council of Ministers, which the government is not obligated to consider.

This is precisely why 75 senators belonging to various
political options, in other words three fourths of the entire Senate, filed a
motion with the Constitutional Tribunal to examine the constitutionality of
premises leading to the restriction of Senate competences. Concurrently, the
Senate prepared a legislative initiative aimed at amending those provisions of
the discussed Act on Cooperation of the Council of Ministers with the Sejm
and Senate on Issues Associated with the Membership of the Republic of Poland in
the European Union which were adverse to the upper chamber.

I think, however, that the Polish constitution will need to be
supplemented in the near future by a chapter reserved for the terms of Poland's
functioning in the European Union. It is only then that we will deal with the
most desired situation where the constitutional norm will compel the government
to listen to the parliament's opinion and define the forum where that will take
place. In turn, norms included in the regulations of both chambers will define
the manner of submitting candidatures and selecting parliamentarians - committee
members, procedural principles of committee functioning and methods of committee
communication with relevant chamber organs and other parliamentary bodies in
Poland and abroad.

Independently of these reflections on the functions of the
upper chamber, one should particularly stress the importance of the very
phenomenon of "europeization" of national parliaments, and, looking at the issue
from the opposite side, of "parliamentarization" of European institutions.
National parliaments, increasingly engaged in integration processes, and the
European Parliament, increasingly involved in making EU-level decisions,
constitute a guarantee of the Union not being perceived as an organization
governed by bureaucracy in Brussels, but as an authentic community of all
citizens of the constituent states. Only when citizens themselves feel that they
influence the course of EU affairs - through their representatives in national
parliaments and through parliamentarians in Strasbourg - will we be justified to
speak of a full success of integration.